97 N.Y. 507, Ferguson v. Hubbell

Citation:97 N.Y. 507
Party Name:JAMES FERGUSON, Appellant, v. FREDERICK B. HUBBELL, Respondent.
Case Date:December 16, 1884
Court:New York Court of Appeals

Page 507

97 N.Y. 507




New York Court of Appeal

December 16, 1884

Argued Nov. 26, 1884.

Page 508


N. P. Hinman for appellant. The court erred in the refusal to charge that negligence on the part of Charles Hammond in setting the fire or the management of the same could render the defendant liable in this action. (Coughtry v. Globe Woolen Co., 56 N.Y. 126.) Defendant Hubbell being the owner of the land, the law imposed a duty upon him to so use it as not to injure his neighbors. (Brusso v. City of Buffalo, 90 N.Y. 679-680; 67 Id. 258; Id. 284.) In determining whether a person is a "contractor" or not, the circumstance that he always serves the same person affords a very strong presumption that he has no independent occupation. (Shearm. & Redf. on Neg., § § 76, 78; Dressil v. City of Kingston, 32 Hun, 533.) The court erred in permitting the defendant to state whether the fire was set by him at a proper time. (Teall v. Barton, 40 Barb. 137; 24 Alb. L. J. 192; Hover v. Barkoff, 44 N.Y. 117; Crofat v. Brooklyn Ferry Co., 36 Barb. 209; Cleveland v. N. J. Steamboat Co., 5 How. 523.)

S. Brown for respondent. Charles Hammond was not the servant of the defendant. The relation of master and servant did not exist between them. This being so, and the work contracted for by the defendant being lawful and not necessarily producing the injuries complained of, he is not responsible for the damages caused by the fire from Hammond's fallow, whether Hammond was guilty of negligence or not. (Pack v. Mayor, etc., 8 N.Y. 222; Kelly v. Mayor, etc., 11 Id. 432; Blake v. Ferris, 5 Id. 48; Forsyth v. Hooper, 11 Allen, 419; Hilliard v. Richardson, 3 Gray, 349; Slater v. Mersereau, 64 N.Y. 138; Town of Pierrepont v. Loveless, 72 Id. 211; Earl v. Beadleston, 42 N.Y.S. Ct. [ J. & S.] 294; McCafferty v. S.D. & P. M. R. R. Co., 61 N.Y. 178; Kepperley v. Rainsdew, 83 Ill. 354; King v. N.Y. Central & H. R. R. R. Co., 66 N.Y. 181;

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Gaughran v. Smith, 75 Id. 205.) The exceptions to the ruling admitting the testimony of witnesses who were on the ground, and had had experience in burning fallows, on the subject of whether it was a proper time to set the fire or burn the log heaps, are not well taken. (Clark v. Baird, 5 Seld. 183; Robertson v. Knapp, 35 N.Y. 91; Albright v. Conley, 40 Texas, 105; Baltimore, etc., R. Co. v. Thompson, 10 Md. 80; Lane v. Wilcox, 55 Barb. 617; Merrill v. Grinnell, 30 N.Y. 594; Moore v. Westervelt, 27 Id. 236; King v. N.Y. C. & H. R. R. R. Co., 72 Id. 607; Blake v. People, 73 Id. 586; Sloan v. N.Y. C. R. R. Co., 45 Id. 125; Hay v. Miller, 70 Id. 116; Brink v. Hanover F. Ins. Co., 80 Id. 115.) In an action based upon the statute (3 R. S., part 1, chap. 20, title 14 [7th ed.] 2086), a verdict will not be set aside when in favor of the defendant on the sole ground that it is against evidence. (Sawyer v. Smith, 1 Denio, 207; Stuart v. Hawley, 22 Barb. 619; Calkins v. Borger, 44 Id. 424.)


On the 17th day of May, 1880, and for a long time prior thereto, the plaintiff owned a certain lot of land numbered 104 in the county of Warren in this State, and the defendant owned lot 116 situated north of 104, and lot 105 situated west of 104.The defendant had leased lot 105 to Charles Hammond to work upon shares, under an agreement by which each party was to furnish half the seed and have half the crops, and the defendant was to pay Hammond $10 per acre for clearing so much of the lot as he should choose to clear. On Thursday, the 13th day of May, Hammond, for the purpose of clearing up a portion of his lot, set fire to some wood and brush thereon. That fire burned moderately and smouldered Friday, Saturday, Sunday and until Monday, when the wind began to blow and the fire started up and passed out of that lot upon lots 116 and 104. On Monday, the 17th, in the forenoon, the defendant, for the purpose of clearing up a portion of lot 116, set a fire upon that lot, and either at the time he set the fire or shortly after, the wind began to blow a sharp gale. One or both of the fires thus set upon these

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two lots passed upon lot 104 and set fire to and burned down a house and barn upon that lot belonging to the plaintiff; and this action was brought by him to recover his damages thus sustained.

Upon the trial it was a disputed question whether the fire which burned the buildings came from that set upon lot 105 by Hammond, or from that set upon lot 116 by the defendant; and the claim of the plaintiff was that, if it came from either of those lots, the defendant was liable. But the defendant claimed that he was not liable for any damage done by the fire set by Hammond. The trial judge decided, and so instructed the jury, that in clearing upon lot 105 Hammond was an independent contractor and not a servant or employe of the defendant, and hence that the defendant was not liable for his negligence; and he charged the jury that if they found that the plaintiff's buildings were burned by the fire set by Hammond, they should render a verdict for the defendant.

We think the court was right in holding as matter of law that the defendant was not liable for the negligence or wrong of Hammond. Hammond was engaged in clearing upon lot 105 under a contract with the defendant to clear by the acre. He could perform his contract by carting the wood and brush away from the lot, or by burning it upon the lot. The defendant had no right to interfere in the work. Hammond was to employ his own help, and he could control and direct them, and choose his own time, and the defendant had no right to direct or control him in the manner in which he should do the work. He was, therefore, in no sense the servant of the defendant so that the doctrine of respondeat superior could apply. The defendant was entitled to the results of his labor, and could...

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